New rules - Allowable absences for ILR to be relaxed

[ukswus]

Looks good at first glance, however:

provided the absence is due to an employment, including annual leave, or business related reason or there are serious or compelling compassionate reasons for the absence.

To me this implies that absences outside of these circumstances (ie: unpaid leave) are not permitted at all.

Whereas previously annual leave was excluded from the 180 day(in 5 years) period which could include unpaid leave etc.

It seems draconian - for example contractors, who do not receive annual leave could not leave the country to holiday?

No, read more carefully:

(b) Except for periods when the applicant had leave as a Tier 1 (General) Migrant, a Tier 1 (Investor) Migrant, a Tier 1 (Entrepreneur) Migrant, a Tier 1 (Exceptional Talent) Migrant, a highly skilled migrant, a businessperson, an innovator, an investor, a selfemployed lawyer or a writer, composer or artist:

(i) the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain, except that any breaks in employment in which they applied for leave as a Tier 2 Migrant, or, under Tier 5 Temporary Worker (International Agreement) Migrant as a private servant in a diplomatic household, where in the latter case they applied to enter the UK before 6 April 2012, to work for a new employer shall be disregarded, provided this is within 60 days of the end of their employment with their previous employer or Sponsor; and

(ii) any absences from the UK during the five years must have been for a purpose that is consistent with the continuous employment in (i), including paid annual leave or for serious or compelling reasons.

So, this only applies to Tier 2 holders.

Logically, the rule of "no single day out of the UK when not employed" would be ridiculously difficult to meet (let alone grossly unfair, especially if applied retrospectively) for Tier 1 holders. However, it is entirely reasonable to expect this from Tier 2 holders, who must be continuously employed in the UK, by design of their visa.

[wf]

Thanks for the clarification, this is quite an amazing development for Tier 1 holders (and the other applicable visas).

[sherkhan297]

The new rules do seem confusing at the moment. When I applied in Oct 2011 with a total of exactly 180 days out of the UK in the 5 years preceeding the application (out of which 105 days was a continuous business trip with a letter from employer), my application was refused stating enough time was not spent in the UK - 90 day rule breach.

I am due to extend my tier 1 that expires 25th January 2013 and apply for ILR in Oct 2013, however, not sure if this rule entitles me to apply for ILR after December 13th 2012? thereby saving me an extension ?

[geriatrix]

From

a Tier 1 (General) Migrant, Highly skilled migrant, Businessperson, Innovator, Investor, selfemployed lawyer, or Writer, composer or artist

who is applying on the basis of 5 years qualifying residential period under only the above stated categories, the only documentary evidence being asked for is:

The applicant must provide the specified documents in paragraph NNNAB-SD to evidence the reason for the absences set out in paragraph NNNABC, where the absence was due to a serious or compelling reason.

A personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents in relation to those reasons – e.g. medical certificates, birth/death certificates, information about the reasons which led to the absence from the UK

If these migrants do not have to provide evidences for absences due to "non-serious and non-compelling personal reasons" and "employment / business reasons" then why are they being asked to submit evidence(s) for absences due to "serious and compelling reasons"??


In other words,

If I have been absent due to a family holiday or wedding outside UK I am not required to provide any evidence but if I have been absent due to a birth / death in the family I am supposed to provide a certificate (of birth / death)???

If I am away from UK for 180 days in a consecutive 12 month period because my partner threw me out on day 1 (and I had no where to stay in the UK) and allowed me in only on the 180th day then I am not required to submit documentary evidence but if I am away for 5 days for a compelling or serious reason then I have submit documentary evidence???

If I am away for any reason that I cannot justify, can I claim "absence due to employment / annual leave"? After all, I am no longer required to submit documentary evidence from employer to verify either!!

[ukswus]

From

a Tier 1 (General) Migrant, Highly skilled migrant, Businessperson, Innovator, Investor, selfemployed lawyer, or Writer, composer or artist

who is applying on the basis of 5 years qualifying residential period under only the above stated categories, the only documentary evidence being asked for is:

The applicant must provide the specified documents in paragraph NNNAB-SD to evidence the reason for the absences set out in paragraph NNNABC, where the absence was due to a serious or compelling reason.

A personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents in relation to those reasons – e.g. medical certificates, birth/death certificates, information about the reasons which led to the absence from the UK

If these migrants do not have to provide evidences for absences due to "non-serious and non-compelling personal reasons" and "employment / business reasons" then why are they being asked to submit evidence(s) for absences due to "serious and compelling reasons"??


In other words,

If I have been absent due to a family holiday or wedding outside UK I am not required to provide any evidence but if I have been absent due to a birth / death in the family I am supposed to provide a certificate (of birth / death)???

If I am away from UK for 180 days in a consecutive 12 month period because my partner threw me out on day 1 (and I had no where to stay in the UK) and allowed me in only on the 180th day then I am not required to submit documentary evidence but if I am away for 5 days for a compelling or serious reason then I have submit documentary evidence???

If I am away for any reason, can I claim "absence due to employment / annual leave"? After all, I am no longer required to submit documentary evidence from employer to verify either!!

what document are you referring to?

[geriatrix]

The applicant must provide the specified documents in paragraph NNNAB-SD to evidence the reason for the absences set out in paragraph NNNABC, where the absence was due to a serious or compelling reason.

A personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents in relation to those reasons – e.g. medical certificates, birth/death certificates, information about the reasons which led to the absence from the UK

The ones highlighted in red.
Reference (for example): para 127 and 128 of HC760.

I am assuming that "employment / business assignments" and "annual leave" do not fall under "serious or compelling reasons".
e.g. - going on a holiday when on annual leave is neither a serious nor compelling reason, it's just - holiday (fun)!!

[ukswus]

From

a Tier 1 (General) Migrant, Highly skilled migrant, Businessperson, Innovator, Investor, selfemployed lawyer, or Writer, composer or artist

who is applying on the basis of 5 years qualifying residential period under only the above stated categories, the only documentary evidence being asked for is:

The applicant must provide the specified documents in paragraph NNNAB-SD to evidence the reason for the absences set out in paragraph NNNABC, where the absence was due to a serious or compelling reason.

A personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents in relation to those reasons – e.g. medical certificates, birth/death certificates, information about the reasons which led to the absence from the UK

If these migrants do not have to provide evidences for absences due to "non-serious and non-compelling personal reasons" and "employment / business reasons" then why are they being asked to submit evidence(s) for absences due to "serious and compelling reasons"??


In other words,

If I have been absent due to a family holiday or wedding outside UK I am not required to provide any evidence but if I have been absent due to a birth / death in the family I am supposed to provide a certificate (of birth / death)???

If I am away from UK for 180 days in a consecutive 12 month period because my partner threw me out on day 1 (and I had no where to stay in the UK) and allowed me in only on the 180th day then I am not required to submit documentary evidence but if I am away for 5 days for a compelling or serious reason then I have submit documentary evidence???

If I am away for any reason that I cannot justify, can I claim "absence due to employment / annual leave"? After all, I am no longer required to submit documentary evidence from employer to verify either!!

Ok, I found it. Nowehere does it say that it applies to Tier-1 migrants, does it?

[geriatrix]

Reference (for example): para 127 and 128 of HC760.

Relevant to Tier 1 (General) and all other non-sponsored pre-PBS categories. I have quoted just one ... to highlight.

[uknotts]

The applicant must provide the specified documents in paragraph NNNAB-SD to evidence the reason for the absences set out in paragraph NNNABC, where the absence was due to a serious or compelling reason.

A personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents in relation to those reasons – e.g. medical certificates, birth/death certificates, information about the reasons which led to the absence from the UK

The ones highlighted in red.
Reference (for example): para 127 and 128 of HC760.

I am assuming that "employment / business assignments" and "annual leave" do not fall under "serious or compelling reasons".
e.g. - going on a holiday when on annual leave is neither a serious nor compelling reason, it's just - holiday (fun)!!

in the new rule, paragraph 134SD – Specified documents, it states that:
B. A letter from the employer detailing the purpose and period of absences in connection with the employment, including periods of annual leave. Where the absence was due to a serious or compelling reason, a personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents in relation to those reasons – e.g. medical certificates, birth/death certificates, information about the reasons which led to the absence from the UK.”

It seems a letter from employer is conpulsory now.

[geriatrix]

134 relates to WP (i.e.- sponsored) employment, so yes. Likewise for all "sponsored" categories.

[pied_piper]

On a different but related note, assuming 180 * 5 = 900 days is the maximum number of days allowed abroad in five years period and someone with 895 days of leave abroad is granted ILR what will be his/her chances of getting British citizenship after a year. One main condition for getting BC is that the applicant must not have been away from the UK for more than 450 days in the last five years

I am interested to know what they want to achieve from this

[ukswus]

Reference (for example): para 127 and 128 of HC760.

Relevant to Tier 1 (General) and all other non-sponsored pre-PBS categories. I have quoted just one ... to highlight.

Not really. Read carefully:

"The applicant must provide the specified documents in paragraph 245CD-SD to evidence the reason for the absences set out in paragraph 245AAA, where the absence was due to a serious or compelling reason"

In paragraph 245AAA, we find:

(b) Except for periods when the applicant had leave as a Tier 1 (General) Migrant, a Tier 1 (Investor) Migrant, a Tier 1 (Entrepreneur) Migrant, a Tier 1 (Exceptional Talent) Migrant, a highly skilled migrant, a businessperson, an innovator, investor, a self-employed lawyer or a writer, composer or artist:

(i) the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain, except that any breaks in employment in which they applied for leave as a Tier 2 Migrant, or, under Tier 5 Temporary Worker (International Agreement) Migrant as a private servant in a diplomatic household, where in the latter case they applied to enter the UK before 6 April 2012, to work for a new employer shall be disregarded, provided this is within 60 days of the end of their employment with their previous employer or Sponsor; and

(ii) any absences from the UK during the five years must have been for a purpose that is consistent with the continuous employment in (i), including paid annual leave or for serious or compelling reasons.

So, this does apply to tier 1 holders when they apply for ILR, but only in cases when they had leave in work permit or tier 2 category before.

[ukswus]

The applicant must provide the specified documents in paragraph NNNAB-SD to evidence the reason for the absences set out in paragraph NNNABC, where the absence was due to a serious or compelling reason.

A personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents in relation to those reasons – e.g. medical certificates, birth/death certificates, information about the reasons which led to the absence from the UK

The ones highlighted in red.
Reference (for example): para 127 and 128 of HC760.

I am assuming that "employment / business assignments" and "annual leave" do not fall under "serious or compelling reasons".
e.g. - going on a holiday when on annual leave is neither a serious nor compelling reason, it's just - holiday (fun)!!

in the new rule, paragraph 134SD – Specified documents, it states that:
B. A letter from the employer detailing the purpose and period of absences in connection with the employment, including periods of annual leave. Where the absence was due to a serious or compelling reason, a personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents in relation to those reasons – e.g. medical certificates, birth/death certificates, information about the reasons which led to the absence from the UK. ”

It seems a letter from employer is conpulsory now.

Right. And if you had even a single day out of the UK, which you cannot back up with the letter from employer, you will be refused settlement (sarcasm intended).

Don't you see that this is completely illogical?

[geriatrix]

Let me try and highlight my confusion a bit differently!

For non-sponsored categories (e.g. - Tier 1 G, and for the sake of simplicity, where the applicant was never under a sponsored category in the qualifying period):

There's no requirement any more for the absences to be employment or business related or on account annual leaves. As long as your absences are below 180 days in any of the five consecutive 12 month periods, you are fine ... no document / justification required! (refer para 116).

OK, understood!


Why are they then asking for documentary evidences for "serious and compelling reasons"? (for example, refer to para 127 and 128).

Why can't these be ignored as well? If not, why would anyone wish to show absences as for "compelling and serious" reasons?? That's the question!!!


245AAA(b) doesn't override 245CD(j) or vice versa. They both are to co-exist .... and both make the other seem illogical.

[ukswus]

Let me try and highlight my confusion a bit differently!

For non-sponsored categories (e.g. - Tier 1 G):

There's no requirement any more for the absences to be employment or business related or on account annual leaves. As long as your absences are below 180 days in any of the five consecutive 12 month periods, you are fine ... no document required! (refer para 116).

OK, understood!


Why are they then asking for documentary evidences for "serious and compelling reasons"? (for example, refer to para 127 and 128).

Why can't these be ignored as well? If not, why would anyone wish to show absences as for "compelling and serious" reasons?? That's the question!!!


245AAA(b) doesn't override 245CD(j). They both are to co-exist .... and both make the other seem illogical.

As I said above, they make a provision for Tier 1 applicants who had prior periods in Tier 2 and work permit categories. For them, at the time of the application for ILR, they will have to prove their absences (during those periods) were for compelling reasons.

In other words, they do want to see the evidence for these absences, but only restricted to those as set out in paragpaph 245 AAA. And there, you will see the imortant restriction "Except for periods when the applicant had leave as a Tier 1 (General) Migrant..." etc.

245CD(j) refers to 145AAA, which in turn defines situations when evidence of absences needs to be shown.

I am not sure why it is so difficult to see from the summary I've made above.

[geriatrix]

In that case, the reference should be specifically to 245AAA(b) and not 245AAA per se, because 245AAA(a)(i) applies to all (including those who never switched categories from sponsored to non-sponsored).

Also, 245AAA(b)(i) has no reference to reasons of absences for which death / birth certificate or medical certificates may be needed. No one gets such evidences for employment related absences and absences on account annual leaves.

245AAA(b)(ii) lists serious and compelling reasons as different from employment related and annual leave related reasons.

[ukswus]

In that case, the reference should be specifically to 245AAA(b) and not 245AAA per se, because 245AAA(a)(i) applies to all (including those who never switched categories from sponsored to non-sponsored).

Also, 245AAA(b) has no reference to reasons of absences for which death / birth certificate or medical certificates may be needed. No one gets such evidences for employment related absences and absences on account annual leaves.

245AAA(b)(ii) lists serious and compelling reasons as different from employment related and annual leave related.

Conditions for absences are only listed in 245AAA(b), so I am not sure what's your objection here.


Compelling absences are again mentioned in "(ii) any absences from the UK during the five years must have been for a purpose that is consistent with the continuous employment in (i), including paid annual leave or for serious or compelling reasons.", but again as applying to those in sponsored category.

I think I know what your confusion is. You don't understand why they don't refer to some specific paragraphs in 245AAA, rather than referring 245AAA in general. To be honest, I don't think it is a serius objection. When I was reading other changes they made, it was done on many occasions.

[geriatrix]

To be honest, I don't think it is a serius objection. When I was reading other changes they made, it was done on many occasions.

I'll take your word for it then!

[ukswus]

To be honest, I don't think it is a serius objection. When I was reading other changes they made, it was done on many occasions.

I'll take your word for it then!

No need to take my word . Just one quick example:


********************************************
119. In paragraph 245AA(b), delete “will” and substitute “may”
*******************************************

If you actually go to 245AA(b), you will see this:

(b) The subparagraph applies if the applicant has submitted:

(i) A sequence of documents and some of the documents in the sequence have been omitted (for example, if one bank statement from a series is missing);

(ii) A document in the wrong format; or

(iii) A document that is a copy and not an original document, the UK Border Agency will contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received by the UK Border Agency at the address specified in the request within 7 working days of the date of the request.

************

It's clear it should only apply to 245AA(b)(iii), but as you see, theey were a bit lax about it.

[rneeta]

Hi all,

In the new rule it states under
128A a that
(iii) the applicant has any period of overstaying between periods of entry clearance,
leave to enter or leave to remain of up to 28 days and any period of overstaying
pending the determination of an application made within that 28 day period
disregarded.

Does this mean if you apply within 28 days after your visa expires, it will not be counted as a break of your continuous leave or over stayer?

[geriatrix]

It means that the period of overstay (max. 28 days) will not be considered as a break in lawful stay, for the purpose of an immigration application under the relevant rule(s).

[rneeta]

Thanks Sushdemehta

What if you apply within 28 days after your visa expired but when new visa is issued (extended) it will be more than 28 days as determination time may take a while.

[geriatrix]

Read the text you have quoted carefully.

[Lucapooka]

Bonanza indeed then!! I can't wait for 13-Dec-12 to pass by!! :D

Yes, but let's examine this in more detail

I think it's fair to assume that the application of this new policy will be very strict rather than arbitrary as with the previous guidance. For example, it mentions that absences have to be either work related or annual leave. But annual leave is normally only 4 weeks in the UK! That's perhaps not a problem for a WP or T2, or a T1 (Gen) migrants who are in full-time employment, as these people will not have extended holidays and will have relevant evidence provided by the employer for any business trips. However, a self-employed T1 (Gen) migrant may struggle to find relevant paperwork that definitively demonstrates his absences were work related beyond their standard annual leave which may be assumed to be around 4 weeks. I don't think claiming 2 or 4 months holiday will fly! Compassionate leave will require rigorous evidence of the emergency.

[ukswus]

Bonanza indeed then!! I can't wait for 13-Dec-12 to pass by!!

Yes, but let's examine this in more detail

I think it's fair to assume that the application of this new policy will be very strict rather than arbitrary as with the previous guidance. For example, it mentions that absences have to be either work related or annual leave. But annual leave is normally only 4 weeks in the UK! That's perhaps not a problem for a WP or T2, or a T1 (Gen) migrants who are in full-time employment, as these people will not have extended holidays and will have relevant evidence provided by the employer for any business trips. However, a self-employed T1 (Gen) migrant may struggle to find relevant paperwork that definitively demonstrates his absences were work related beyond their standard annual leave which may be assumed to be around 4 weeks. I don't think claiming 2 or 4 months holiday will fly! Compassionate leave will require rigorous evidence of the emergency.

Actually, quite standard annual leave in the UK is 25 (working) days, which translates into 5 weeks, if weekends are also counted (in total 35 days). I think it is fair to assume that if a person goes on holiday from, say, Monday, and returns to work the following Monday, then adjoining weekends will be considered as consistent with annual leave (even though the employer will only confirm 5 working days taken as leave). Moreover, let's not forget about 8 days of public holidays, and then you easily have much more than "4 weeks" of holidays.

In fact, if you are right about the allowable absence days of no more than 4 weeks a year, this would translate into only 140 days of allowed absences in 5 years in total (with the added constraint that you cannot have more than 28 days of absences in a year, if you are self-employed). Clearly, this would be extremely draconian and unfair to people who were not aware of this rule from the very beginning.